Delhi District Court
Manish Dua vs Jyoti Bajaj on 9 November, 2021
Manish Dua V. Jyoti Bajaj etc.
IN THE COURT OF SH. ARUN SUKHIJA,
Ld. ADDL. SESSIONS JUDGE-03 (EAST DISTRICT),
KARKARDOOMA COURTS, DELHI.
Criminal Revision No. - 170/2019
In the matter of :
Manish Dua
S/o Sh. Joginder Kumar Dua
R/o 18/114, Geeta Colony,
Delhi-110031. (Complainant before Trial Court)
...Petitioner
Versus
1. Jyoti Bajaj
Principal Director
M/s. Eternity Infracon Ltd.
343, Gali No.10, Ajay Park,
Naya Bazar, Najafgarh,
New Delhi-110043.
Also at:
House No. 352, Ward no. 9,
Panipat,
Haryana - 132103. (Accused No.4 before Trial Court)
2. M/s. Eternity Infracon Ltd.
A Limited Company,
Having its Regd. Office cum
Principal Place of Business at:
46, 1 st Floor, Bharat Nagar,
Phase-4, Ashok Vihar,
Delhi-110052. (Accused No.1 before Trial Court)
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Manish Dua V. Jyoti Bajaj etc.
3. Arshpreet Singh Kochhar
Principal Director-cum-Authorized
Representative & Signatory,
M/s. Eternity Infracon Ltd.
46, 1 st Floor, Bharat Nagar,
Phase-4, Ashok Vihar,
Delhi-110052. (Accused No.2 before Trial Court)
4. Archana Handa
Principal Director-cum-Authorized
Representative & Signatory,
M/s. Eternity Infracon Ltd.
46, 1 st Floor, Bharat Nagar,
Phase-4, Ashok Vihar,
Delhi-110052.
Also at:
House No. 36, JL CGHS,
Plot No.9, Sector-5,
Dwarka, Delhi-110075. (Accused No.3 before Trial Court)
(Through Respondent No. 2 to 4, above named
are merely performa parties for the purpose of
Present Revision Petition).
...Respondents
::- O R D E R -::
Vide this Order, this Court shall dispose of the revision petition filed
by the complainant/petitioner challenging the order dated 22.06.2019 passed
by Ld. Trial Court, whereby, Ld. Trial Court has discharged Jyoti Bajaj i.e.
accused no.4/respondent no.1 on the ground that she was not the Director
and/or associated with accused no.1 company at the relevant time when the
cheques in question were presented for encashment.
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Manish Dua V. Jyoti Bajaj etc.
The complainant/ petitioner has filed the complainant under Section
138 N.I. Act claiming accused no.4/respondent no.1 as the Director of the
company and signatory of the cheques in question. Para No.10 of the
complaint reveals that the complainant has himself filed and relied upon
Annexure-C1 (Colly.) i.e. the website extracted true copy of Form-32 of all
accused no. 2 to 4 i.e. Directors of accused no.1 company. The said
document was filed and relied upon by the complainant before the Ld. Trial
Court. The perusal of the said document reveals that accused
no.4/respondent no.1 was ceased to be the Director and was not associated
with accused No.1 company w.e.f. 15.09.2014. The cheques in question for
which the complaint is filed were admittedly dated 18.05.2015 and
admittedly, the same were dishonoured thereafter. Therefore in terms of
Annexure C-1(colly.), the admitted case of the complainant/petitioner is that
the accused no.4/respondent no.1 was not even the Director and/ or
associated with accused No.1 Company.
The Ld. Trial Court, while summoning accused no.4/respondent no.1,
has not even looked into the said document Annexure-C1 (Colly.) and has
also summoned accused no.4/respondent no.1 even though, she was not the
Director of the accused No.1 company in view of document Annexure
C-1(Colly.) filed and relied upon by the complainant.
Ld. Counsel for the petitioner/complainant has assiduously argued that
Ld. Trial Court is not possessed with any powers to discharge or drop the
proceedings after invoking the provisions of Section 251 Cr.P.C. against
accused no.4/respondent no.1 as Section 258 Cr.P.C. is not applicable to
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summons triable cases. In order to buttress the said arguments, the Ld.
Counsel for the complainant/petitioner has relied upon the following
judgments:-
1. Subramaniam Seturam Vs. State of Maharashtra & Anr. 2005
SCC (Crl.) 242 and
2. Adalat Prasad Vs. Roop Lal Jindal 2004 (7) SCC 338
Ld. Counsel for accused no.4/respondent no.1 has relied upon the
judgment of Arvind Kejriwal & Ors. Vs. Amit Sibbal & Anr. Crl. M.C.
No. 5245/2013 and Crl .M.A. No. 18920-21/2013 decided on
16.01.2014 .
Ld. Counsel for accused no.4/respondent No.1 has vehemently argued
that the said question of law was extensively adjudicated by our own Hon'ble
High Court in the aforesaid judgment and after thrashing the entire law under
Section 251 Cr.P.C., including the Judgments as relied upon by the Ld.
Counsel for the complainant, the directions were given by the Hon'ble High
Court to subordinate Courts in para no. 20. The Ld. Counsel for accused
no.4/respondent no.1 further argued that in view of the conclusions arrived
by our own Hon'ble High Court the Ld. MM, at the time of framing of the
notice, has to look into whether any offence is made out against the accused
person(s) and framing of notice under Section 251 Cr.P.C. is not merely a
formality.
The perusal of the impugned order dated 22.06.2019 reveals that very
same arguments were addressed before the Ld. Trial Court and the Ld. Trial
Court has discussed the law laid-down by Hon'ble Supreme Court and also
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Manish Dua V. Jyoti Bajaj etc.
by our own Hon'ble High Court from internal pages nos. 4 to 7 of the
impugned order. It is apposite to reproduce para no. 20 of the judgment of
Arvind Kejriwal & Ors. (Supra):-
"In view of the authoritative pronouncements of the
Supreme Court in Bhushan Kumar (supra), Krishan Kumar
Variar (supra) and Maneka Gandhi (supra) and of this court
in Raujeev Taneja (supra), Urrshila Kerkar (supra) and
S.K. Bhalla (supra), accused are entitled to hearing before
the learned Metropolitan Magistrate at the stage of framing
of notice under Section 251 CRPC in all summons cases
arising out of complaints and the magistrate has to frame
the notice under section 251 CRPC only upon satisfaction
that a prima facie case is made out against the accused.
However, in the event of the learned Magistrate not finding
a prima facie case against the accused, the magistrate shall
discharge/drop the proceedings against the accused. Since
there is no express provision or prohibition in this regard
in the code of criminal procedure, these directions are
being issued in exercise of power under section 482 read
with section 483 CRPC and article 227 of the Constitution
to secure the ends of justice; to avoid needless multiplicity
of procedures; to keep the path of justice clear of
obstructions and to give effect to the principles laid down
by the Supreme Court in Bhushan Kumar (supra), Krishan
Kumar Variar (supra) and Maneka Gandhi (supra)".
The bare perusal of the aforesaid judgment of our Hon'ble High Court,
the Magistrate is clothed with sufficient powers under Section 251 Cr.P.C. to
look into the fact that whether a prima facie case is made out against the
accused person(s) and if, the Ld. Magistrate finds-out that there is no prima
facie case was made-out against the accused person(s), then, the Magistrate
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shall discharge/drop the proceedings against the accused person(s). The said
directions were given in exercise of powers under Section 482 read with
Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of
justice; to avoid needless multiplicity of procedures; to keep the path of
justice clear of obstructions and to give effect to the principles laid down by
the Hon'ble Supreme Court in Bhushan Kumar, Krishan Kumar Variar and
Maneka Gandhi. In view of law expounded by our Hon'ble High Court, the
arguments of Ld. Counsel for the complainant that the Magistrate has no
power at the time of framing of notice to discharge/drop of the proceedings
are totally devoid of any merits and the same are hereby rejected.
The Ld. Counsel for the petitioner/complainant has further argued with
forensic tenacity that cheques in question were given to the complainant at
the time of Buyback Agreement dated 17.05.2014 and as per para no.4 of the
said document six PDCs were given to the complainant and out of those six
PDCs, four PDCs were already cleared and two PDCs i.e. cheques in
question were dishonoured and at the time of issuance of the said cheques,
admittedly, the accused no.4/respondent no.1 was the Director of the
company, therefore, accused no.4/respondent no.1 cannot be discharged on
merits also.
The perusal of buyback agreement clearly reveals that the same was
executed with M/s. Eternity Infracon Ltd. and not with accused
no.4/respondent No.1. The said document was signed by authorized
representative of the company and who is authorized signatory, has not been
mentioned in the said buyback agreement. The perusal of the same reveals
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that the said agreement is not even signed by accused no.4/respondent no.1.
It is also not the case of the complainant/ petitioner that the said document
was signed by accused no.4/ respondent no.1. No doubt, as per the
document of Annexure C-1 (Colly.), on the date of execution of buyback
agreement dated 17.05.2014, the accused no.4/respondent no.1 was the
Director of the accused No.1 company, however, the question arises that
when cheque in question was presented, at that time, the accused no.4/
respondent no.1 was having any control over the company in the day-to-day
affairs of the company as director of the company to make efforts for
honouring the cheques in question. The complainant has impleaded accused
no.4/respondent no.1 being the Director of the company in the complaint.
The primary liability, if any, for honouring the cheques in question was of
M/s. Eternity Infracon Ltd. and the Directors liability can be roped by way of
vicarious liability, as envisaged and enunciated under Section 141 of the N.I.
Act. The person, who is not even the Director at the relevant time when the
cheque bears a date or when the cheque is presented, cannot intervene in the
affairs of the company after his/her resignation. Admittedly, the accused
no.4/ respondent no.1 was not even the Director and she has resigned about
8-9 months back from the alleged date of cheques in question or its
presentation thereof and accordingly, she was not having any control over the
said company being the Director of the company. The accused No.4/
respondent No.1 was not having any control in accused No.1 Company and
in the facts and circumstances of the present case, Section 141 of N.I. Act
cannot be invoked against accused no.4/ respondent no.1.
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Ld. Counsel for the complainant/petitioner has also argued that the
aforesaid facts require trial and in my considered view, admittedly, when the
documents as filed and relied upon by the complainant clearly reveal that
accused no.4/respondent no.1 is not associated with accused No.1 company
then where is the question to rope and entangle accused no.4/respondent no.1
in the proceedings just for the sake of trial. Considered from any view point,
there is no merit in the petition.
FINAL ORDER:
In view of the above observations, this Court is passing the following
final order:
ORDER
(a) The revision petition of the petitioner/complainant/revisionist is hereby dismissed.
(b) The parties shall bear their own respective costs.
(c) The copy of this order be sent to the Ld. Trial Court forthwith.
(d) File of revision petition be consigned to Record Room after due compliance.
The Judgment is pronounced in the open Court on this 9 th day of November, 2021 under my hand and seal. Dated: 09.11.2021 Place: Delhi (ARUN SUKHIJA) Additional Session Judge-03 (East District) Karkardooma Courts, Delhi Criminal Revision No. 170/2019 Page - 8 of 8